Duquin v. Colucci

• Decision Date: 17 December 1976
• Citation: 55 A.D.2d 832,390 N.Y.S.2d 314
• Parties: William A. DUQUIN, Appellant, v. Anthony J. COLUCCI et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 314

390 N.Y.S.2d 314

55 A.D.2d 832

William A. DUQUIN, Appellant, v. Anthony J. COLUCCI et al., Respondents.

Supreme Court, Appellate Division, Fourth Department.

Dec. 17, 1976.

Joseph A. Shifflett, Buffalo, for appellant.

Leslie G. Foschio, Peter J. Gerard, Buffalo, for respondents.

Before MARSH, P.J., and MAHONEY, DILLON, GOLDMAN and WITMER, JJ.

MEMORANDUM:

This is an appeal from a judgment of Supreme Court, Erie County dismissing appellant's Article 78 petition. The petition sought review of determinations of the Municipal Civil Service Commission of the City of Buffalo (the Commission), made with respect to an examination given for the position of Assistant Housing Manager. In his petition appellant demanded judgment against the Commission, requiring it to accept his answers to certain of the multiple choice type questions on the examination or, in the alternative, to accept more than one answer to such questions as correct. Appellant also sought deletion of questions 4, 5, 21, 22 and 90 as not being 'reasonably related to the position of Assistant Housing Manager'.

The judgment of Special Term is reversed and the matter remitted for development of a proper evidentiary record. On remittal, the Commission is directed to file with their answer the disputed questions and answers for the examination (Kurtz v. Krone, 22 A.D.2d 988, 254 N.Y.S.2d 645), including the examination instructions and all other papers 'material' and 'evidentiary' relative to the examination and decision of the Municipal Civil Service Commission of the City of Buffalo which are the subjects of this proceeding (CPLR 7804(d) and (e)). Such authority is vested in Special Term (Occhino v. Hostetter, 21 A.D.2d 744, 250 N.Y.S.2d 1038).

Though a court may not set aside an administrative action simply because it might have made a different determination were it empowered to do so (Meschino v. Lowery, 34 A.D.2d 255, 310 N.Y.S.2d 908), the agency must demonstrate to the court the existence of a rational basis for its determination (McPartland v. McCoy, 35 A.D.2d 641, 313 N.Y.S.2d 6). On this record the Commission's answer did not present an adequate basis to demonstrate the rationality of its deletion of certain questions. Nor did the Commission make any showing demonstrating that certain questions were reasonably related to the position of Assistant Housing Manager. There existed, therefore, no adequate record upon which Special Term could make its determination (see Barry v. O'Connell, 303 N.Y. 46, 52, 100 N.E.2d 127, 130).

On remittal Special Term need not reconsider appellant's contention that the Commission has the power to accept two...